State Driver’s License Bills: An Analysis of New Jersey’s S1696 (Apr 2014)

S1696 would establish driving privilege cards for New Jersey residents who cannot prove lawful presence in the United States. It was introduced in the New Jersey Senate on March 17, 2014 by Senators Joseph Vitale and Teresa Ruiz and referred to the Senate Transportation Committee. It is identical to A2135, introduced in the New Jersey Assembly on January 16, 2014.

S1696 would extend driving privileges to all New Jersey residents, regardless of immigration status. Currently, in order to qualify for a driver’s license or non-driver ID in New Jersey, an applicant must provide either a valid social security number or proof of lawful presence. S1696 would create a “driving privilege card” for state residents unable to prove legal status. The law would go into effect seven months after its enactment.

Section 1

Section 1 of S1696 amends New Jersey Statute 39:3-10 governing the licensing of drivers. Specifically, the bill permits the issuance of a driving privilege card for which the New Jersey Motor Vehicle Commission (MVC) may charge a fee.

Analysis

This section creates a new document called a “driving privilege card” – a document distinguishable from New Jersey’s standard “driver’s license.” Of the 11 states (and the District of Columbia) that have passed laws extending driving privileges to the undocumented, only two – New Mexico and Washington – offer undocumented residents a driver’s license identical to the license available to those with lawful immigration status. The remaining 10 jurisdictions have created a two-tiered system in which the license issued to undocumented drivers differs in some way from the standard driver’s license. It might have a different title on the face of the document, a distinguishing design and color, and/or include a phrase describing the limits of its use. The below chart summarizes the types of driving privilege regimes that exist for undocumented drivers in the 11 states and Washington D.C.

“This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”

License will indicate that it is not acceptable for federal identification purposes and also include the phrase: "for driving purposes only."

While the ideal bill would provide the same New Jersey driver’s license to all individuals, including the undocumented, this is politically unlikely, particularly in light of the impending deadline for states to comply with the federal REAL ID Act. REAL ID was passed in 2005 following concerns that several of the September 11 terrorists had obtained driver’s licenses or state identification documents. The law set minimum security standards for state-issued driver’s licenses and identification cards (including a requirement that recipients be U.S. citizens or possess a certain immigration status[1]). Once REAL ID is fully implemented, driver’s licenses that do not meet its standards will no longer be accepted by federal agencies for official federal purposes, such as entering a federal building or boarding a federally-regulated commercial airplane.

The REAL ID Act is not yet being enforced. The Department of Homeland Security has pushed back the deadline for state compliance numerous times since 2005. However, 21 states already issue driver’s licenses that meet REAL ID minimum standards and another 22 states have received an extension based on demonstrating that they are working to comply. To date, New Jersey has neither complied with the REAL ID license standards nor has it been granted an extension. However, New Jersey likely will work towards compliance within the next few years, which will require changes to the way it currently issues driver’s licenses to all residents. As a result, it may be politically difficult to pass a bill that simply extends access to the current driver’s license to the undocumented. Rather, New Jersey likely will opt to create a separate, non-REAL ID-compliant license that is marked “Not for Federal Identification” or with similar language. [2] New Jersey may wish to look into the path taken in Vermont, where residents have the option of choosing whether to apply for a REAL ID-compliant driver’s license or a non-compliant one, depending on personal preference or the inability or decision not to present the documents required to verify identity, citizenship, or lawful status in the U.S.

Section 2

Section 2 is a new section.

Subsection a.

This subsection mandates the issuance of a driving privilege card (DPC) to applicants who meet all of the other requirements for a New Jersey driver’s license but cannot prove lawful U.S. citizenship.

Analysis

This subsection, by using the phrase “cannot provide proof of lawful citizenship in the United States,” suggests that the standard New Jersey driver’s license is available only to U.S. citizens and the DPC is being created for all non-citizens. In fact, there are a number of non-citizens with legal status (for example lawful permanent residents or other temporary visa holders) who can currently obtain driver’s licenses in New Jersey. Unless the intent of the bill is to require all non-citizens to apply for a DPC rather than a driver’s license, this language should be amended. Instead of referring to lawful U.S. citizenship, it should reference those who cannot prove legal presence in the U.S. or obtain a social security number. This is the distinction made by all other states who offer driving privileges to their undocumented residents.

Subsection b.

This subsection requires DPC applicants to provide proof of their identity, date of birth, and New Jersey residency. Among the acceptable documents to prove these three items are original or certified copies of:

a valid consular identification document or passport from the applicant’s country of citizenship

a birth certificate

a home utility bill, lease, or rental agreement

a marriage license or divorce certificate

a foreign federal electoral photo card

a foreign driver’s license

a Form I-589 application for asylum

an official school or college transcript

a Form I-20 or DS-2019 (for those in F-1 student status or J-1 exchange visitor status)

a deed or title to real property

a property tax bill or statement issued within the last year

an income tax return

The exact documents and combination of documents that will be acceptable are to be determined by MVC regulations adopted after the law’s enactment.

Analysis

This non-exhaustive list of acceptable documents is nearly identical to those enumerated in California’s driver’s license law and similar to those accepted in other states. Advocates will want to work closely with the MVC throughout the process of drafting and adopting regulations in order to ensure that the final list of acceptable documents is an inclusive as possible. If the DPC is intended to be the only licensing option available to all non-citizens (as mentioned above) then the list of acceptable documents will need to be expanded to include I-551 permanent resident cards (“green cards”) and other immigration status documents.

Subsection c.

This subsection requires non-English documents presented to prove identity, date of birth, and residency to be accompanied by a certified translation or affidavit of translation. It also requires that DPC applicants either surrender any other state driver’s licenses they possess or affirm in writing that they do not possess any other driver’s license. Finally, applicants must also affirm in writing that they have no record of criminal history in New Jersey or anywhere else (including conduct in another state that would constitute an indictable crime in NJ).

Analysis

While the English translation requirement appears in other states’ driver’s license laws, it may be advisable to consult with departments of motor vehicles (DMVs) in those states about implementation before deciding whether to retain this requirement. In Nevada, applicants are required to use a DMV-approved translator from a list on its website – a requirement that has created challenges for many applicants. Connecticut’s law established a working group to study methods of verifying foreign documents and create an effective process for doing so. An alternative option would be to allow bilingual officials at the MVC to assess documents in the original language in lieu of mandating translation.

The requirement that DPC applicants surrender any other state driver’s licenses they possess or affirm in writing that they do not possess any other driver’s license could create problems. In Illinois, for example, there have been reports of the DMV pursuing fraud prosecutions against applicants who had applied for a license in the past using a false social security number. This is a real danger in New Jersey where applicants for standard driver’s licenses who have provided false documentation or made false statements may be found guilty of falsifying government records, a crime carrying a jail sentence of up to 18 months and/or a $1,000 fine.

The requirement that an applicant sign a statement attesting to not having a criminal record in New Jersey or anywhere else is problematic for various reasons. First, it does not define which New Jersey crimes (or convictions in other states) will be considered to constitute a criminal record. Asking MVC officers to make decisions about whether a given applicant has a record that would make him or her ineligible for a DPC would require complicated legal analysis that such employees may not be qualified to undertake. Finally, this is a wide-reaching ban. If New Jersey wishes to deny driving privileges to certain undocumented residents who present a danger to public safety, they could go the way of Connecticut, which denies the right to a license to undocumented drivers convicted of a felony in the state. No other state laws deny driving privileges to the undocumented on the basis of having a criminal record.

Subsection d.

The MVC may charge an additional fee above and beyond the regular driver’s license application fees for the first five years of the DPC program.

Analysis

Other states also allow for an additional fee beyond the cost of the standard driver’s license in order to cover the costs of implementing the program. Advocacy with the MVC during the drafting of its regulations can help ensure that any additional application fee is reasonable and would not serve to deter potential applicants.

Subsection e.

Applicants who provide false documentation or make a false statement on a DPC application will be guilty of falsifying government records under N.J.S. 2C:21-4 (a fourth degree crime which, following conviction, may result in up to 18 months of imprisonment and/or a fine of up to $1,000).

Analysis

This type of provision is not included in other states’ laws granting driving privileges to those without lawful status in the U.S. However, as mentioned above, criminal liability for providing fraudulent information to the New Jersey MVC extends uniformly to all applicants (including those for regular driver’s licenses and non-driver ID cards) so the law does not appear to be singling out undocumented drivers for exposure to criminal liability.

Section 3

Section 3 is also a new section.

Subsection a.

This subsection provides that the DPC will be valid for 4 years from the date it is was issued.

Analysis

4 years is a reasonable validity period. The laws of other states provide driving privileges with a range of validity periods (1 year in Nevada and Utah; 2 years in Vermont; 3 years in Colorado, Connecticut, and Illinois; 4 years in New Mexico and Oregon; 5 years in California, Maryland, and Washington; and 8 years in DC).

Subsections b. and c.

Under subsection b, a DPC cannot be recognized as a form of identification by any public (state or local) officer, official, or employee. It may only be used to show that the holder is authorized to operate a motor vehicle in New Jersey.

Subsection c requires the MVC to adopt regulations about the form and design of the DPC. While its appearance must be similar to a driver’s license, it must contain conspicuous language similar to the following statement: This card entitles the person pictured to operate a motor vehicle. Not For Federal Identification Purposes. This card does not establish eligibility for employment, voter registration, or public benefits.

Analysis

Subsection c.

Let’s first consider subsection c. As explained above, only Washington and New Mexico offer undocumented residents the standard driver’s license available to individuals lawfully present in the country. All other jurisdictions offer licenses that are distinguishable by title, color, and/or design, and contain language limiting the use of the license. Because New Jersey will likely begin compliance with REAL ID in the near future, it may not be feasible to advocate for an unmarked license for the undocumented. However, it is worth pushing for the distinguishing features to be as minimal as possible.

It is REAL ID concerns that prompt states to place language on the licenses for undocumented drivers clearly stating that they are not acceptable for official federal purposes. As discussed above, REAL ID prohibits the federal government from accepting a state driver’s license for official federal use, unless that state has been found to verify the citizenship or lawful status of applicants prior to issuing them licenses. The exact phrasing on the non REAL ID-compliant licenses varies from state to state. The language in New Jersey’s bill most closely mirrors the language in California’s driver’s license bill. REAL ID concerns make it unlikely that New Jersey would pass a law that didn’t require a phrase similar to the one mandated by subsection c.

Subsection b.

What is more concerning is subsection b which prohibits public employees (meaning employees of state or local agencies, not representatives of federal agencies) from recognizing the DPC as a form of identification. As a result, the MVC regulations may require including a phrase on the face of the DPC stating that the card is not valid as a form of identification. Advocates should push to remove from the bill any explicit restriction against DPC holders using the card to prove their identity to state or local officials. Residents of states where privilege cards permit driving but are not accepted as identification by state and local government have reported difficulties in picking up their children at school, reporting crimes to local law enforcement, establishing their identity to emergency responders, and engaging in other transactions with public officials. Moreover, preventing the DPC from serving as proof of a person’s identity may result in police taking DPC holders into custody for “identification” or fingerprinting. This, in turn, could easily lead to DPC holders being turned over to ICE and placed into immigration removal proceedings through ICE partnerships with local law enforcement, such as the Secure Communities program.

Section 4

Section 4 is also a new section.

Subsection a.

This subsection provides that a DPC applicant’s personal information collected by the MVC is subject to the same restrictions on disclosure as information collected from driver’s license applicants.

Analysis

Inclusion of a data confidentiality provision is positive since DPC applicants deserve to have their personal information protected from disclosure just as applicants for standard driver’s licenses do. However, the provision does not make any specific reference to protecting immigration status information. In light of the severe consequences of having one’s undocumented status revealed (including possible deportation), DPC applicants face heightened confidentiality concerns. In order to encourage undocumented drivers to come forward and apply for DPCs, New Jersey should assure potential applicants that information related to their immigration status will remain private. Other states’ laws contain confidentiality provisions that specifically protect information related to legal presence or immigration status. For example, Nevada’s law expressly prohibits its DMV from releasing any information related to legal presence or immigration status “to any person or to any federal, state or local governmental entity for any purpose related to the enforcement of immigration laws.” Washington D.C. prohibits the disclosure of information related to legal presence “except as necessary to comply with a legally issued warrant or subpoena.” A provision that explicitly protects immigration status information might encourage more undocumented New Jersey residents to decide to apply for a DPC.

Subsection b.

Subsection b makes discrimination against a DPC holder by a public official a crime of official deprivation of civil rights under N.J.S. 2C:30-6 (a third degree crime punishable by 3-5 years imprisonment and/or up to a $15,000 fine).

Analysis

Inclusion of an anti-discrimination provision in the bill is constructive. However, as a practical matter, it can be difficult to enforce laws prohibiting discrimination on the basis of the type of ID someone presents. If New Jersey is interested in providing additional protection against potential discrimination to DPC holders, it could consider California’s approach of prohibiting discrimination against license holders by private business establishments in addition to public entities.

Subsection c.

This subsection provides that a DPC “shall not be used to consider an individual’s citizenship or immigration status as a basis for a criminal investigation, arrest, or detention.”

Analysis

Again, the intent behind this section is positive – to protect undocumented individuals who possess or present a DPC against local law enforcement officers assuming that they are in the country without authorization or investigating, arresting, or detaining them based on their assumed immigration status. However, the wording of this section is confusing and needs to be changed. Washington D.C.’s driver’s license law provides that the license “shall not be used to consider an individual’s citizenship or immigration status, or as a basis for a criminal investigation, arrest, or detention” (emphasis added). California’s law provides its license “shall not be used as evidence of the holder’s citizenship or immigration status, and shall not be used as a basis for a criminal investigation, arrest, or detention in circumstances where a person with a driver license that was not issued under [this law] would not be criminally investigated, arrested, or detained” (emphasis added). New Jersey should edit the wording of this section to mirror one of these provisions.

Subsection d.

Four years after the law goes into effect, the MVC shall submit to the state a report evaluating the effectiveness of the DPC program, including data on the number of convictions for official deprivation of civil rights and for falsifying government records (without revealing the identify of specific individuals).

Analysis

This provision would ensure that the MVC monitors the law’s implementation during the initial 4 years. However, the requirement for the MVC to provide data on the number of public officials convicted of the crime of official deprivation of civil rights may present practical hurdles as it could be difficult to obtain this data from the New Jersey criminal court system.

Section 5

Section 5 is a new section that requires the MVC to conduct a public education campaign about the availability of DPCs and the requirements for obtaining one.

Analysis

This appears to be a positive provision but it is vague with respect to when the public education campaign would launch and how it would be funded.

Section 6

The bill will go into effect 7 months after its enactment.

Analysis

It is worth considering whether 7 months is sufficient time to issue regulations and prepare for implementation, including capacity building of MVC staff, public education, etc.

Conclusion

Estimates of the number of undocumented immigrants in New Jersey range from 339,064[3] to 550,000[4] (the latter estimate represents approximately 6.2% of the state’s population and 8.6% of its workforce). Immigrant advocates have pointed out that “New Jersey is a car state” in which the availability of affordable, efficient public transportation is quite limited and the inability to drive can present major challenges to immigrants’ ability to access decent jobs. The benefits of extending driving privileges to all New Jersey residents, regardless of immigration status, are clear. CLINIC’s talking points provide a number of specific reasons to support licensing all drivers, including improvements to public safety on our roads, economic benefits, and the development of safer communities and stronger families.

In a perfect world, undocumented residents would be granted the right to a standard driver’s license rather than a marked license such as the one proposed in S1696. We are still in the process of learning about the unintended consequences of marked licenses for the undocumented, such as discrimination by individuals or selective law enforcement by officials. However, of the 11 states that have passed laws extending driving privileges to the undocumented, all but New Mexico and Washington offer licenses that are marked in some way. A distinguishable driver’s license that contains as minimal marking as possible and serves as a valid form of identification is a step in the right direction and will result in many benefits to New Jersey’s undocumented residents. Advocates can push for the document to be called (and labeled on its face) a “driver’s license” (identical to the standard license) rather than a “driving privilege card.” More importantly, they should work to minimize the appearance of the marked language (by utilizing small font size and no colored lettering or background) so that the license appears as similar as possible to the standard license. They should also work to strengthen the data confidentiality provision so that it explicitly protects information related to immigration status. Finally, they should ensure that the bill clarifies that it is for those who cannot prove legal presence in the U.S. rather than for all non-citizens.

This document was prepared in April 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at (301) 565-4807 or jriddle@cliniclegal.org.

[1] Individuals with the following types of immigration status are eligible: lawful permanent residents; lawful temporary residents; conditional residents; refugees, asylees, and asylum applicants; nonimmigrants; those who have applied for or been granted temporary protected status; deferred action recipients; and those with pending adjustment of status applications. In contrast, individuals with the following types of lawful presence are not eligible for REAL ID-compliant licenses: individuals granted withholding of removal; humanitarian parole recipients; certain battered spouses/children, trafficking survivors, or Cuban/Haitian entrants; grantees of Family Unity or deferred enforced departure; applicants for cancellation of removal; and individuals under an order of supervision.

[2] REAL ID is not a mandate and does not prevent states from issuing licenses to anyone. It simply requires that state-issued driver’s licenses meet its criteria in order for the federal government to recognize those licenses for official federal purposes. REAL ID allows states to issue licenses that do not meet the REAL ID requirements so long as the licenses indicate that they are not acceptable for official federal purposes and are visually distinguishable from REAL ID-compliant licenses.

[3] See August 2013 study by the Center for Applied Research in the Apostolate at Georgetown University based on U.S. Census Bureau and Department of Homeland Security statistics. The breakdown per diocese is as follows: Newark: 158,958; Trenton: 66,466; Metuchen: 47,546; Camden: 39,953; Paterson: 26,141.

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